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Johnson v. Doughty

January 17, 2006


Appeals from the United States District Court for the Central District of Illinois. No. 00 C 3119. Harold A. Baker, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.


Before RIPPLE, MANION, and KANNE, Circuit Judges.

Former Illinois prison inmate Van Dyke Johnson sued, pro se, three prison doctors and seven prison officials under 42 U.S.C. § 1983, alleging Eighth Amendment violations. Specifically, Johnson claims that the defendants were deliberately indifferent to a serious medical need because they treated his hernia through non-surgical means. During the district court proceedings, Johnson made several motions for counsel under 28 U.S.C. § 1915(e)(1), which the district court denied. The district court granted summary judgment to some of the prison officials. After a bench trial, the district court entered final judgment in favor of the remaining defendants. Johnson appeals the district court's denial of counsel, grant of summary judgment to some of the defendants, and entry of final judgment in favor of the remaining defendants. We affirm in all respects.


In 1994, Van Dyke Johnson was convicted of first degree murder in Illinois and was incarcerated by the Illinois Department of Corrections ("IDOC"). In late April or early May 2000, during his imprisonment at IDOC's Graham Correctional Center, Johnson discovered a protrusion in his groin area. Johnson saw a nurse in early May. The nurse told Johnson that he had a hernia. She gave him some Tylenol for his pain and scheduled a doctor's appointment for him.

Two days later, Dr. Don Hinderliter examined Johnson and diagnosed him with an inguinal hernia (i.e., a hernia in the groin area) that, in Dr. Hinderliter's opinion, did not require surgery. Instead, Dr. Hinderliter prescribed a hernia belt/truss to stop the hernia from protruding. After discussing the matter further with Dr. Hinderliter, Johnson requested surgery because of the significant pain he was experiencing. In response, Dr. Hinderliter referred him to Dr. Robert McEntyre, Graham's medical director. This was Johnson's only visit with Dr. Hinderliter.

Johnson saw Dr. McEntyre on several occasions, the first in early June 2000. Upon examination, Dr. McEntyre found the hernia to be "reducible," which means that the hernia can be pushed back inside the body without difficulty. Dr. McEntyre also determined that Johnson's vital signs were all normal and that Johnson did not display any objective signs of acute distress. Further, there was no hint of vomiting or other indications of severe sickness. For these reasons, Dr. McEntyre concluded that the hernia was not "strangulated"-an emergency surgical situation in which the hernia is non-reducible and possibly gangrenous, i.e., causing abdominal tissue decay. Dr. McEntyre further determined that surgery was not required at that point in time. To alleviate Johnson's pain, Dr. McEntyre supplemented the Tylenol and hernia belt by further prescribing Metamucil to relieve Johnson's bowel discomfort. Dr. McEntyre also instructed Johnson to avoid heavy lifting and strenuous activity, and, to that end, Johnson received a lower bunk permit.

Two days after his first visit with Dr. McEntyre, Johnson, on an emergency basis, saw Dr. Stephen Doughty. Dr. Doughty also concluded that the hernia was reducible, and, as Dr. McEntyre had seen Johnson only two days earlier, Dr. Doughty told Johnson to continue following Dr. McEntyre's instructions. This was Johnson's only visit with Dr. Doughty.

Thereafter, Dr. McEntyre monitored Johnson's condition through four additional visits in June and August 2000. Dr. McEntyre's diagnosis of a reducible hernia remained consistent throughout this period. Dr. McEntyre, moreover, did not observe any worsening of the condition that would necessitate surgery.

Other than Johnson's annual physical in October 2000, Johnson did not have or request another doctor's visit during his time at Graham.*fn1 In early December 2000, IDOC transferred Johnson to IDOC's Dixon Correctional Center. In March 2005, Johnson was released on parole and is scheduled to be on parole until March 2008.*fn2

Displeased with the lack of surgical treatment at Graham, in April 2001 Johnson filed this deliberate indifference action under § 1983, alleging that the treatment of his hernia through non-surgical means constituted cruel and unusual punishment under the Eighth Amendment. This suit pertains only to the seven months, May to December 2000, when Johnson had his hernia at Graham. Besides the three doctors who examined and treated him, Johnson also named seven IDOC and Graham officials as defendants: John Cearlock (health care administrator), Steve Curll (counselor), Billie Greer (assistant warden), Alex Jones (assistant warden), Robert Radmacher (IDOC official), Gilberto Romero (warden), and Donald Snyder (IDOC director). In addition to injunctive relief (i.e., an order mandating that the defendants perform/facilitate hernia surgery), Johnson's complaint requested compensatory and punitive damages.*fn3

Other than Cearlock, these prison officials' interaction with Johnson was limited to dealing with his grievances and other complaints about the hernia treatment. For his part, Cearlock, as health care administrator, met with Johnson on August 25, 2000, to discuss the situation. Cearlock also happens to be a registered nurse. Deferring to the doctors, Cearlock told Johnson to follow the doctors' instructions and also scheduled an appointment for Dr. McEntyre to reevaluate Johnson's condition (which Dr. McEntyre did shortly thereafter).

Initially, the defendants moved to dismiss the suit. Johnson, proceeding pro se, then moved for counsel under § 1915(e)(1). Johnson attempted to secure counsel on his own, but two organizations and five practitioners declined his requests for representation. The district court denied the motion for counsel, reasoning that the matter was not so complex or intricate that an attorney was necessary. Subsequently, the district court denied defendants' motions to dismiss, concluding that they were not entitled to qualified immunity. Johnson then made another request for counsel, which the district court again denied.

Later, when the defendants moved for summary judgment, the district court determined that Johnson's hernia presented a serious medical need. The district court then granted summary judgment for all the prison officials, except Cearlock, reasoning that those defendants were not deliberately indifferent to that need because they took Johnson's medical complaints seriously and reasonably relied upon the doctors' recommendations in handling Johnson's condition.

The district court, however, denied summary judgment with respect to the doctors and Cearlock. As to the doctors, the district court concluded they had failed to refute Johnson's contention that, due to some policy or practice, the doctors would not have recommended surgery for Johnson's hernia regardless of the amount of pain and difficulty it caused. This determination led the district court to further conclude that a factual dispute existed as to whether the doctors' denials of surgery were made in the absence of professional judgment, which, if true, would give rise to deliberate indifference liability (see discussion of legal standard below).

As to Cearlock, the district court could not, at that point in the proceedings, determine if, like the other prison officials, Cearlock deferred to the doctors' medical opinions because, unlike the other key prison officials, Cearlock did not attach a supporting affidavit to the summary judgment motion. The district court, therefore, found that there was a factual dispute as to whether Cearlock, as the health care administrator, bore some responsibility for the doctors' decision not to operate.

The case against the remaining defendants proceeded to a bench trial. Before trial, Johnson filed another motion for counsel, and the district court denied the request. At trial, Johnson testified first. Johnson then examined Cearlock. At the conclusion of Cearlock's testimony, the district court was convinced that Cearlock was not deliberately indifferent to Johnson's condition since Cearlock, similar to the other prison officials, deferred to the doctors' medical opinions. The district court thus granted judgment mid-trial in favor of Cearlock.

Johnson next examined Dr. McEntyre. After a lengthy exchange between Johnson, Dr. McEntyre, and the district court about when Dr. McEntyre would recommend hernia surgery, Johnson began to repeat some of his questioning, and the district court eventually ended the examination. Then, to move matters along, the district court asked Johnson if he could provide any evidence that Dr. Hinderliter did anything other than see Johnson one time and refer Johnson to Dr. McEntyre. When Johnson responded in the negative, the district court granted judgment for Dr. Hinderliter before he could take the stand. The district court then examined Dr. Doughty to make a record of his interaction with Johnson (i.e., one visit) and concluded the trial.

The district court's final order disposing of the case reiterated its rulings from the bench and ruled in favor of all of the defendants, reasoning that the evidence failed to support any findings of deliberate indifference. Johnson filed motions for reconsideration and for a new trial, each of which the district court denied.


Johnson appeals and is now represented by counsel. The focal point of Johnson's appeal is the district court's rejection of his motions for counsel. He also challenges the summary judgment and final judgment determinations that went against him.


Civil litigants do not have a constitutional or statutory right to counsel in federal court. See Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997). They, however, may request counsel pursuant to § 1915(e)(1), and then the matter is left to the district court's discretion. See 28 U.S.C. § 1915(e)(1) ("The court may request an attorney to represent any person unable to afford counsel."); Luttrell, 129 F.3d at 936. Consequently, our review under § 1915(e)(1) is limited to the abuse-of-discretion standard. See Greeno v. Daley, 414 F.3d 645, 658 (7th Cir. 2005); Luttrell, 129 F.3d at 936. Furthermore, we evaluate a district court's denial-of-counsel decision "as of the time it was made"-i.e., without the benefit of hindsight. Hudson v. McHugh, 148 F.3d 859, 862-63 n.1 (7th Cir. 1998).*fn4

In reviewing denials of counsel, the test is not whether this court would have appointed counsel if it were in the district court's position. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th Cir. 1995). Even if the reviewing court may have preferred to appoint counsel, that is not its role. Otherwise, such disagreement would always compel appointment.*fn5 Rather, "overrid[ing]" a district court's denial of counsel is reserved for only "that extreme case in which it should have been plain beyond doubt" that counsel was necessary. Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993).

Also, the test is not whether "a good lawyer may have done better than [the plaintiff]." Luttrell, 129 F.3d at 936. Because if that were the test, "district judges would be required to request counsel for every indigent litigant." Id. (quoting Farmer, 990 F.2d at 323).Section 1915(e)(1) leaves significant discretion with the district court.

To determine if a district court abused its discretion in denying counsel, we have formulated a two-step inquiry. We first ask: "[G]iven the difficulty of the case, did the plaintiff appear to be competent to try it himself[?]" Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). If so, our inquiry ends right there. If not, we further ask: "[W]ould the presence of counsel have made a difference in the outcome?" Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). Reversal is therefore warranted only when the district court's "denial amounts to a violation of due process." Zarnes, 64 F.3d at 288; see also Gil v. Reed, 381 F.3d 649, 657 (7th Cir. 2004). In other words, a district court will be held to have abused its discretion under § 1915(e)(1) only if the denial of counsel made "it impossible for [the plaintiff] to obtain any sort of justice." Farmer, 990 F.2d at 323 (emphasis added).

Johnson has not met this "exacting standard." Id. This case was not overly difficult. Johnson had to show that he had a serious medical need and that the defendants consciously disregarded that need so as to impose cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 837-38 (1994); Higgins v. Corr. Med. Servs. of Ill., Inc., 178 F.3d 508, 511 (7th Cir. 1999). At the time the district court denied each of Johnson's three requests for counsel, Johnson displayed the necessary competence to present a basic, adequate case. When the district court denied Johnson's first request for counsel, Johnson had not only filed an acceptable complaint but also had defended his complaint with detailed and well-organized memoranda of law opposing the defendants' motions to dismiss. His memoranda cited and discussed the relevant Supreme Court and Seventh Circuit case law. In Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997), the plaintiff was found to be an "exceptionally able litigant" due to her court papers being "comprehensible and literate." Likewise, in this case, Johnson's court filings were comprehensible and literate. See id.; see also Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir. 2000) (plaintiff showed sufficient competence to try his own case simply because "initial complaint specifically referred to both the Eighth and the Fourteenth Amendments, and his motion in opposition to summary judgment competently addressed the key points"); cf. Gil, 381 F.3d at 657 (plaintiff's limited English skills and reliance on another inmate to draft his court papers demonstrated an inability to try the case by himself). Moreover, by the time the district court denied Johnson's second request for counsel, Johnson had prevailed against the defendants' motions to dismiss.

In addition, when the district court denied his third request for counsel, Johnson had filed similarly satisfactory memoranda of law concerning summary judgment, see Weiss, 230 F.3d at 1034 (quotation above), and had also prevailed against four of the ten defendants at the summary judgment stage. Further, by that juncture, Johnson had filed a motion to ascertain Dr. Doughty's full name and contact information for service purposes and had won. Cf. Greeno, 414 F.3d at 658 (plaintiff's repeated failure to serve defendants with process indicated an inability to try the case by himself). Astutely, Johnson also had filed a motion in limine to restrict the defendants from mentioning his criminal history and prison disciplinary record at trial. (The motion later became moot when the matter was converted from a jury trial to a bench trial.) While Johnson does not appear to have prior litigation experience, see, e.g., Forbes, 112 F.3d at 264, that can hardly be a reason to justify reversing a denial of counsel because, if it were, an overwhelming number of pro se litigants would become entitled to counsel. Rather, Johnson's able handling of the aforementioned matters in this case-especially his ability to successfully marshal facts and case law to avoid dismissal and partially avoid summary judgment-sufficiently demonstrates that he knew what he had to do to prosecute an ...

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